Supreme Court Judge Antonin Scalia has given an opinion on the 14th Amendment to the Constitution, and who it excludes from full equality…
In an interview with California Lawyer, Scalia said that the Constitution itself does not protect women and gay men and lesbians from discrimination. Such protections are up to the legislative branch, he said.
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.
For most of our history we had second-class citizenship for women. Our right to vote is less than 100 years old. But there is a remedy...
THE EQUAL RIGHTS AMENDMENT
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
This amendment was blocked thirty years ago by activists such as Phyllis Schlafly and others from the religious right who feared that it would open the door to gay rights and women in the military. But since the horse is out of the barn anyway, and Judge Scalia has identified a huge gap in the Constitutional rights of women, it’s clearly time to revive and ratify the ERA.
Kmareka.com 
I haven’t noticed that women are being held down these days.This didn’t succeed thirty years ago because it wasn’t needed then and is even more irrelevant now.
The chances are that if Barack Obama ahdn’t been elected President,Hillary Clinton would’ve become the first woman President.
I am tired of this constant complaining about theoretical inequality.
Also, gender discrimination -is- illegal already, you ladies don’t need another amendment to the constitution to underline your existing rights. What Scalia is saying isn’t that you’re not protected, it’s that you’re protected by various federal and state laws instead of the constitution itself (which is a pretty sparse document by it’s own nature).
http://en.wikipedia.org/wiki/Employment_discrimination_law_in_the_United_States
And here’s the actual quote from the magazine:
“You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” -Scalia
See, the constitution is a -really- barebones outline of how the federal government is laid-out (three branches, representative democracy, etc.). The bill of Rights gets specific about more things, like human rights and commerce. Still, there’s no need to have a constitutional amendment prohibiting something that’s already prohibited universally by federal and state legislatures.
Okay, so things are fine the way they are.
We don’t need our rights guaranteed in writing.
When a Supreme Court judge says equality is not written into the Constitution, we can have our rights determined state by state and fight each battle separately.
Why am I not feeling good about this?
What is it about the Equal Rights Amendment that is un-American?
What you’re not understanding is that you already have those rights in every state and locality.Prove that you don’t-as you like to say-sources,please.
The first and only right that the Constitution specifically affirms as equal for women and men is the right to vote.
The 14th Amendment’s equal protection clause has never been interpreted to grant equal rights on the basis of sex in the same way that the Equal Rights Amendment would. In 1971, the 14th Amendment was first applied to sex discrimination, and the the latest ruling on this issue by SCOTUS does not negate the assumption in law that males hold rights and females must prove that they hold them.
Until the ERA is law, women must fight long political and judicial battles; battles so expensive most people–male or female–cannot afford them. And what are these political and judicial battles? Simply to ensure that women’s rights are constitutionally equal to the rights automatically granted to males on the basis of sex.
This affects males too. There are a few cases in men must fight battles to ensure that they have equal rights with females. Child custody and other issues in family law are the just a few examples.
Legislation isn’t enough. Congress has the power to replace existing laws by a majority vote.
The ERA provides a clearer and stricter federal judicial standard for deciding cases of sex discrimination. Lower-court decisions in the various circuits and states (some with state ERA’s and some without) still reflect confusion and inconsistency about how to deal with sex discrimination claims. Sex discrimination should get the same judicial scrutiny as race discrimination.
Lastly, ratification of the ERA would improve the standing of the United States globally with respect to equal justice under law.
Thank you Demeter! I find it unbelievable that people do not see how women must fight battles for equality. In pay alone we are constantly being ripped off. In professional organizations, women are almost never in leadership. Look at RI government — dominated by men.
So when the president of the NRA is a woman(more than once)I guess that wouldn’t count because in your world there wouldn’t be such a group allowed.
Anyway,the Constitution should not meddle in “professional organizations”-the Constitution regulates the government,not the private sector.Did you ever take a constitutional law course?I did.If you haven’t,you can access this easily enough on the net.
extending the vote to women was indeed
something that required a constitutional amendment,but equal pay?That’s an employer-employee decision.If you don’t like the pay,quit the job or don’t take it to begin with.
From what you say about yourself here,I guess that’s not an issue for you.
Gina Raimondo,Susan Farmer,Teresa Paiva-Weed,Rhoda Perry,Elizabeth Roberts,Nancy Mayer,Lila Sapinsley,etc.
Are you kidding me?
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” – the 14th Amendment
That’s as much protection as -anybody- has… Not just men. You have it, I have it, black people have it, gay people have it. Just because they’re not named specifically doesn’t mean it’s inherently there.
You have equal protection of the laws. The laws themselves can be skewed, but they can be skewed in either direction.
As for pay and promotions WRT gender… There’s a lot of debate about that. The lion’s share of the ‘wage gap’ is caused by hours worked, and I don’t think ANYONE advocating equality should say that Person 1 working for 43 hours should get the same pay as Person 2 who only works 36. The promotion issue is (a) rapidly disappearing as education and qualifications balance towards women, and (b) possibly related to ‘ambition’ and ‘risk-taking’ which are at least partially influenced by cultural and biological factors.
“That’s as much protection as -anybody- has… Not just men. You have it, I have it, black people have it, gay people have it. Just because they’re not named specifically doesn’t mean it’s inherently there.
But that’s the whole point of this post, no? A Justice on the Supreme Court DENIES that the 14th Amendment guarantees this to different sexes. That’s the issue, and it’s one that’s quite alarming to me. Scalia says: “certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
Your statement that the wage gap between men and women is due to hours worked is unfounded.
“The wage gap between women and men cuts across a wide spectrum of occupations. The Bureau of Labor Statistics reported that in 2007 female financial advisers earned 53.7% of the median weekly wages of male financial advisers, and women in sales occupations earned just 64.8% of men’s wages in equivalent positions.
If working women earned the same as men (those who work the same number of hours; have the same education, age, and union status; and live in the same region of the country), their annual family incomes would rise by $4,000 and poverty rates would be cut in half.” (from http://www.infoplease.com/ipa/A0763170.html#ixzz1AB0F3K81) The statistic that for every $1 a man earns, a woman earns $.77 (not sure of the most recent number) is a statistic that factors hours worked and assumes a 40-hour work week for both sexes.
I would be interested in reading more about the promotion issue balancing towards women, as I’ve not read anything that details this phenomenon.
But none of those are the real issues here. The real issue is, “with Justice Scalia’s remarks in mind, should the ERA be ratified?”
You have to be kidding.when i worked for the Federal government I saw a definite trend towards women getting priority in promotions.At one point both the Commissioner and Deputy Commisssioner of my agency were women-one was venal and the other was totally incompetent,but they filled a poitical requirement under the Clintons.At that time,our ultimate boss,the Attorney General was also a woman-she was a drunk and barely competent.
So spare me the crying towel.
My wife worked for a non-profit where men were routinely treated like dirt and women ran the show.It didn’t escape her notice,that’s for sure.My wife never used gender or being non-White to chisel a position out of anyone-she just tried to do the best job possible.
Don’t get me wrong-i worked with female offisers on the street who were the best,period.It depends on the person,not the sex.
“Your statement that the wage gap between men and women is due to hours worked is unfounded.”
I don’t mind a healthy debate, but how can you stand by this when the page you linked says:
“The wage gap… is calculated by dividing the median annual earnings for women by the median annual earnings for men.”
Not “per hour worked”, it’s comparing annual median incomes. The American Time Use Survey from 2008 (from the BLS), shows that working men work 8.44 hours a day on average, and working women work 7.42 hours a day on average. I don’t seem to be able to find productivity numbers that inform on gender or race, probably because the data would be political suicide to try to collect.
When I did my own math, taking the 77% number and correcting for the average number of hours worked by men vs. women, the wage gap was around 10%. There are a lot of ways to skin this cat, but only the most deceptive tactics bring you to the 77% number.
I’m a liberal guy myself, and I’m all for equal rights… I’m just not going to let half the population be shamed over numbers that are pulled from the farthest end of the credibility spectrum. There are ‘common myths’ on both the left and the right side of American politics that serve no purpose but to muddy the waters, The 77% number is one of them.
And as far as an equal rights amendment… I don’t think we need one, since you already have equal protection under the law in the 14th. Just like me. I don’t have any rights that you don’t.
I think the trouble is that we’re using different terms. I’m saying that you already have ‘equal protection under the law’, and you’re asking for ‘equal rights’, which is a bit more nebulous. Currently, women in the military aren’t (intentionally) put into combat, nor do they have to register for the draft.
Should equal rights also come with equal responsibilities?
What if men and women have ‘equal rights’ to be firefighters, constitutionally, but a district has a requirement that a firefighter be able to carry X amount of weight, and there are no women in the town who can do it? Would the weight requirement violate womens’ right to be firefighters in that town? That’s the big concern over using nebulous terms like ‘rights’ in a cavalier way. ‘protection under the law’ is a much clearer definition.
“That’s as much protection as -anybody- has… Not just men. You have it, I have it, black people have it, gay people have it. Just because they’re not named specifically doesn’t mean it’s NOT inherently there.”
Corrected my mistake… It changes the whole meaning and could have caused confusion as to what kind of person I am.
Demeter’s point, that Justice Scalia said that the Constitution does not guarantee equal protection for both sexes is the reason the Equal Rights Amendment is worth re-visiting.
If it’s true that the current laws address all issues of inequality then passing that amendment won’t do any harm.
On the other hand, leaving women’s legal rights to the discretion of Supreme Court judges and state laws is a gap in justice.
The same Court that gave corporations a huge present with Citizens United also serves them by making it easier to use women as a labor force they can underpay.
Holy cow-“offisers”-I’m reading too much Krazy Kat.
I agree that a job well done should be rewarded, regardless of sex. I don’t think women should be rewarded just because they are women. Some women do great jobs and are appreciated; some do great jobs and aren’t appreciated. Men face the same thing. Crying towel? Did you really go there?
I would expect a better logical fallacy to be committed.
We’re talking about guaranteeing the most basic equal rights, not some unequal gynearchy where women are praised simply because of their sex. We’re talking about a world where women have an equal starting ground in the eyes of the law.
The issue raised in this blog entry had nothing DIRECTLY to do with pay or promotions. Having taken Con Law, I’d expect you to be able to appreciate that your own experiences in life are by no means universal and thus, not applicable to the logic at hand.
Scalia states again and again in interviews that the 14th Amendment does not offer this protection to women. A review of Justice Scalia’s rulings on the 14th Amendment indicates that he, as a legal objectivist, believes the 14th Amendment only applies to black men and one white man (in his ruling on Gore v. Bush).
“14th Amendment only applies to black men and one white man”
That makes Scalia a bozo. You have to read the -words of the law-, and those provide equal protection of the law to all citizens, and even some non-citizens. There’s nothing about skin color in the 14th amendment. Nothing at all.
If Scalia wants to interpret this law in ways it wasn’t written, I trust that his colleagues have enough sense to leave him in the dissenting party. At some point, it always has to come to that.
Nobody’s experience are universal.You work with what you have.
Interestingly back around 1974-75 I was a NY State Court Officer before going with the Feds and I was on a special unit assigned to high security risk trials(like the BLA)and our supervisor was a Black woman-she got the job because she was good at what she did,and never had a single supervisory issue with anyone.I guess because they selected the personnel for the unit on the basis of competence and professionalism.
Relax about the “crying towel”remark.It’s not gender specific(look at me buying into PC here)as it seems to apply pretty well to Boehner and Beck.
There are plenty of times when crying is normal,but not just to make a point.
We need another enlightened liberal voice on the Court. Citizens United is a plague.
That’s another case where the Supreme Court sort of did what it was supposed to do…
The onus is on -lawmakers- to make -laws- that limit corporate and union money in elections, not for judges to interpret the constitution to come to a conclusion about it. The constitution is not where that sort of thing should be happening.
I didn’t like the ruling, but I understood why it went that way.
No, the Supreme Court is not some kind of judge-o-matic that spits out decisions. Citizens United has invited a flood of money into the electoral process, without accountabilty. James Bopp Jr. was in Rhode Island arguing that his organization should not even have to follow disclosure rules, because it’s too much trouble.
“Citizens United has invited a flood of money into the electoral process, without accountabilty.”
Hey, I want money out of politics as much as the next guy. The problem is that there were laws that went as far as limiting first amendment rights of free speech to do it.
If I’m a PAC, I expect to be regulated and to have to disclose my finances. If I’m the owner of a publishing house that releases a book endorsing a particular candidate, I don’t expect to have my book banned during the runup to the election because of it.
So is Roe v.Wade.Tough.
I’m in the Scalia camp that says ‘persuade your fellow citizens’ that something is right or wrong.
From a political perspective I don’t even believe in inalienable rights from the standpoint that we as human don’t have inherent rights but only the rights our forefathers were able to negotiate with their fellow man and rights were are able to further negotiate with our contemporaries.
Which is why I get upset when people say they have a ‘right’ to X or Y when for centuries they would have been drawn and quartered for even saying such things. Times and people change, but the presumption of some folks is appalling to me.
Women have for a very long time been second class citizens. That’s dramatically changed in the last 100 years and I agree with someone who said earlier that we almost elected a woman president in 2008. However, though that is the case it doesn’t mean discrimination based on sex or race is dead because we elected Obama and almost elected Clinton.
Instead, I believe it means for the majority of people in America race/sex has become a non-factor when determining the merits of someone’s qualifications. There are and will continue to be pockets of discrimination, but I don’t think we need an equal rights amendment but believe the most significant amendment that has led to increasing equality among men and women was and continues to be the right to vote.
Don, I always take time for an extra cup of coffee before responding to your comments.
“From a political perspective I don’t even believe in inalienable rights from the standpoint that we as human don’t have inherent rights but only the rights our forefathers were able to negotiate with their fellow man and rights were are able to further negotiate with our contemporaries.”
I get that you are talking politics not morals.
But it’s untenable to demand that a group with less power negotiate their rights with the group with more power.
It’s been done, but the sacrifice is immense and the battle never ends. Women’s suffrage and Civil Rights were enabled by Supreme Court rulings.
I am happy to live in times when the progress in equality is visible. The past is even more reason to write our equality into the Constitution, especially since a Supreme Court judge said that equal protection can be interpreted very narrowly.
I think all the male commenters who were good enough to share their opinion said in one way or another, “things are fine with me, what’s the problem?”
Given our history, it seems all the more important to get it in writing.
I think there are more than ‘pockets of discrimination’. I think there are pockets of equality in a society that is saturated with bias of many kinds.
We’ll never achieve perfect fairness, but we should aim for it.
But you couldn’t bring yourself to put it in writing that illegal aliens couldn’t participate inobtaining routine(as opposed to emergency)medical care.make your mind up about when “in writing” is necessary.
I meant to support putting that in writing.
That,and the 1099 issue,and the mandatory nature of getting insurance were my three problems with health care legislation.
If I honestly thought there was widespread opprsseion of women in the workplace or in the realm of education,I would support such an amendment,so don’t accuse me of blowing off the value of people because they’re women.I respect women who make it on their own steam as I do men.